Finding a pre-1858 Will

In my last post I mentioned that the arrangements for Wills and probate in England and Wales changed in 1858.  After the Court of Probate Act of 1857, Wills are generally much easier to find.  Before 1858, however, the arrangement was far more complicated.

Ecclesiastical Courts
Prior to the changes brought about by the 1857 Act, the granting of probate and letters of administration (if someone died without making a Will) was a function of the ecclesiastical courts.  However, there were more than 300 possible courts.  Before we can work out which one dealt with our ancestor’s estate we first need to understand the court hierarchy within the Church of England. 

Between the Reformation and the mid-19th century there were twenty-seven dioceses in England and Wales. 

Map showing Church of England dioceses in England and Wales between the Reformation and the mid-19th century
Map showing C of E dioceses and provinces circa 1550 to mid-19th century

Then, as now, these were organised into two provinces, or archdioceses: York and Canterbury. The dioceses of York, Carlisle, Chester, Durham and Sodor & Man came within the province of York, the remainder fell within Canterbury.

Each of these dioceses were subdivided into archdeaconries, and it was generally here where matters of probate were decided.

However, there were many exceptions.  Some territories were instead under the jurisdiction of a manorial, ecclesiastical, royal or prebendary ‘peculiar’.  Elsewhere, jurisdiction might leap-frog the archdeaconry, resting instead with the bishop’s own ‘Consistory Court’. These probate rights were jealously guarded: they brought in an income.

[This map came from an article by Paul Wainwright about using York Diocese Cause Papers for family history research.]

The court to be used varied from parish to parish
Within each diocese there were of course many parishes, and even adjacent parishes could come under the jurisdiction of different Probate courts. The easiest way to find out the arrangements for your parish of interest is to use the online tool at FamilySearch.

  • Go to FamilySearch Maps and enter a location in the search box.
  • I’m going to use Kinver. Only one location, in Staffordshire, matches that name. That’s the one I need, so I’ll click on that.
  • A fairly basic map showing the boundaries of the parish appears. For Kinver, if I click to remove the pop-up box I can see that this parish included other places called Stourton and Compton.
  • However, we do need that pop-up box so I click the place name again over in the left sidebar and the box will reappear. What we’re interested in is Jurisdictions. Click on that, and fourth down in the list you’ll see Probate Court. For Kinver, we see that this parish comes under the diocese of Lichfield, and the Probate Court was the Court of the Bishop of Lichfield (Episcopal Consistory). In other words, this parish does not deal with the usual archdeaconry for probate matters.
  • For comparison, if I click on the adjacent parish of Wolverley, I’m now not only in a new county (Worcestershire) but also a new diocese: Worcester; and the Probate Court is the Court of the Dean and Chapter of Worcester. Back in Staffordshire, and back in the diocese of Lichfield, before 1846 my ancestors in Bilston would have used the Court of the Peculiar of Wolverhampton, and after that date would have used the Court of the Bishop of Lichfield (Episcopal Consistory).

Note that this information on FamilySearch Maps is good as at 1851. There may have been some changes, but generally this is a good place to start.

So you now have a picture of how complex the situation was, but at least we have a way of finding out which court dealt with the parish where our ancestor lived.

Probate took place where the testator held ‘property or noteworthy goods’
For most of our ancestors, once you’ve found the parish you know where to look for the probate or administration documents. However, technically, probate took place not where the testator died but where he or she held ‘property or noteworthy goods’.  What if your ancestor held land in several parishes or even several archdeaconries? The rule is quite simple: you go up a level in the church hierarchy until you reach the level that encompasses all the relevant lands. Hence, if a person held property in two archdeaconries within one diocese, probate was proved at the Bishop’s Consistory Court.  If property was held in more than one diocese, the Prerogative Court of Canterbury (PCC) or Prerogative Court of York (PCY) was used; and if in both provinces, probate at both was usual. 

The rule may be simple but the difficult part might be knowing all the places your wealthier ancestor held land.

Regardless of the above, for some circumstances the Prerogative Court of Canterbury was preferred or required

  • Serving soliders and sailors, and people who died abroad but held property in England and Wales.
  • From 1818-1858, if the deceased held stocks and shares, the Bank of England would only accept wills proved at the PCC.
  • The PCC was preferred by Nonconformists who wished to lessen the connection to the local Anglican church structures.
  • It was also preferred for reasons of prestige.

Finding the Wills
Building on that background information we’re now in a better position to look for our pre-1857 ancestors’ wills. As with the post-1857 National Probate Calendar, wills are indexed by year of probate which, if disputed, could be several years after death, so be prepared to search further than the actual year in which you know your ancestor died.  There is, unfortunately, no centralised index, so we must make use of finding guides (see below), but here are some pointers:

  • Wills proved at the archdeaconry or an ecclesiastical peculiar will usually be lodged with the relevant county archives.
  • Those proved at the bishop’s Consistory Court may be lodged with a separate diocesan archive.
  • Records of manor-peculiars can be difficult to locate. Being private papers, they could have been lodged out of county if the former lord of the manor had a principal home elsewhere. They might also have been lost, or simply never been made available to the public.
  • The National Archives hold registered copy wills for all probates made at the PCC between 1384 and 1858. These are not the original wills – you won’t see your ancestor’s signature – but they are copies of the original probates written into volumes by clerks at the church courts. You can search them [here]. At the time of writing (because of limited access to the National Archives at Kew) some of these are available to download free of charge. Some of them (but not all) are also available on Ancestry.co.uk in the record set England & Wales, Prerogative Court of Canterbury Wills, 1384-1858.
  • The Borthwick Institute in York holds half a million wills, dating from 1267 to 1858. Most of these are from Yorkshire and Nottinghamshire, but there are some from Cheshire, Lancashire, Westmorland, Cumberland, Northumberland and Durham. The index for all these documents from 1688 is available on Find My Past, with an easy link through to Borthwick for ordering digital copies of the originals. (Any probate documents will show up under Birth, Marriage & Death records.) Pre-1688 Wills are indexed separately, both at the Borthwick archives and also in a series of Yorkshire Archaeological Society publications available online through Internet Archive, starting with YAS Record Series Vol. 6: Index of wills in the York Registry, 1389 to 1514.
  • Other wills may be available online, but it all depends on licensing arrangements made between the archives and one of the subscription websites. For example, Ancestry has a record set called Yorkshire, England, Probate Records, 1521-1858 which includes probate documents for a manor-peculiar of interest to my research.

Finding Aids
These include:

FamilySearch maps

Smith, Cecil R. Humphery: The Phillimore Atlas and Index of Parish Registers – This is available on Ancestry.co.uk as the record set Great Britain, Atlas and Index of Parish Registers

J. Gibson & S. Raymond: Probate Jurisdictions: Where to look for wills 6th edition, The Family History Partnership, 2016 – This is an inexpensive booklet but is sometimes out of print. You can usually get second hand copies.  County record offices and local history libraries are also likely to have it.

Don’t forget that you can always ask the staff at the archives for advice if you get stuck.  I have only ever found them to be extremely helpful.

*****

This has necessarily been a whirlind tour.  I did a four-week course to learn how to find and use Wills, and if you wanted to do that too you can find the course [here].  But there is at least enough information here to get you started and I hope it helps.